Criminal Code of Canada - section 462.371(7) - Application of section 462.42

section 462.371(7)

INTRODUCTION AND BRIEF DESCRIPTION

Section 462.371(7) states that Section 462.42 applies, with necessary modifications, to a person who asserts ownership of property that is the subject of an order filed under subsection (3) or (4).

SECTION WORDING

462.371(7) Section 462.42 applies, with such modifications as the circumstances require, in respect of a person who claims an interest in property that is the subject of an order filed under subsection (3) or (4).

EXPLANATION

Section 462.371(7) of the Criminal Code of Canada relates to the forfeiture of property that has been acquired through criminal activity. The section provides that Section 462.42, which deals with the disposition of forfeited property, applies to any person who claims an interest in property that has been seized under subsection (3) or (4) of this section. Subsections (3) and (4) of Section 462.371 allow for the seizure of property that is believed to be proceeds of crime or was used in the commission of a criminal offence. When such property is seized, it is held by the government until the court determines whether it should be forfeited. The purpose of Section 462.371(7) is to ensure that any legitimate interests in the seized property are properly considered before forfeiture. This means that if someone claims to have a rightful interest in the property, such as a mortgage holder or a joint owner, they have the opportunity to have their claim heard by the court. Section 462.42 provides for the disposal of forfeited property, including its sale and distribution of proceeds. Modifications may be needed to this section to accommodate the specific circumstances of the case. Overall, Section 462.371(7) seeks to balance the need to deprive criminals of their ill-gotten gains with the rights of innocent parties who may have a legal interest in the property.

COMMENTARY

Section 462.371(7) of the Criminal Code of Canada is a provision that deals with the forfeiture of property. It applies to a person who claims an interest in property that is the subject of an order filed under subsection (3) or (4). This provision specifies that Section 462.42 applies to such a person, with such modifications as the circumstances require. Section 462.42 deals with the procedure for obtaining a preliminary order of forfeiture. It provides that a peace officer may apply to a justice for a preliminary order of forfeiture of property that is believed to be proceeds of crime or an instrument of crime. The justice may grant the order if he or she is satisfied on the balance of probabilities that the property is in fact proceeds of crime or an instrument of crime. In the context of Section 462.371(7), the person who claims an interest in the property that is the subject of an order filed under subsection (3) or (4) is essentially challenging the order of forfeiture. They are saying that they have a legal interest in the property and that it should not be forfeited. The modifications that may be required under Section 462.371(7) will depend on the circumstances of the case. For example, it may be necessary to modify the procedure for challenging the order of forfeiture, or to modify the standard of proof that must be met to succeed in the challenge. Overall, Section 462.371(7) is significant because it provides a mechanism for persons who claim an interest in property that is the subject of an order of forfeiture to challenge that order. This is important because forfeiture can have serious consequences for the person who owns the property, and it is therefore important that they have a fair and reasonable opportunity to challenge the order. By applying Section 462.42 with modifications as required, the Criminal Code ensures that such persons have access to justice and the opportunity to protect their property interests.

STRATEGY

Section 462.371(7) of the Criminal Code of Canada forms part of the proceeds of crime regime in Canada. When dealing with this section, there are several strategic considerations that one should keep in mind, especially when claiming an interest in property that is subject to an order filed under subsection (3) or (4). Firstly, it is important to note the legal test for claiming an interest in property. Under section 462.37(1) of the Criminal Code, a person may claim an interest in property seized if they can prove that: (a) they own the property or have a lawful possession of it; (b) they acquired the property lawfully; and (c) the property was not used in or acquired by unlawful activity. It is therefore important to gather all documentation and evidence that support these elements of the legal test. For example, if claiming ownership of a vehicle that was seized, the claimant should provide proof of ownership such as a vehicle registration or bill of sale. Secondly, it is important to understand the potential consequences of making a claim for property, especially if the property is tied to criminal activity. Making a claim for property that is used in or acquired by unlawful activity can draw unwanted attention to oneself and may result in criminal charges as well as the forfeiture of the property. Thirdly, it is important to consider the timing of making a claim for property. Section 462.371(7) requires that section 462.42 applies with such modifications as the circumstances require. Section 462.42 sets out the procedure for making a claim for seized property. It is therefore important to follow this procedure carefully and within the timeframe prescribed by the court. Fourthly, it is important to consider the potential outcome of making a claim for property. If the court finds that the claimant has satisfied the legal test for claiming an interest in the property, the property may be returned to the claimant. However, if the court finds that the claimant has not satisfied the legal test or that the property is tied to criminal activity, the property may be forfeited to the Crown. Lastly, it is important to consider obtaining legal representation when making a claim for seized property. A lawyer can provide advice on the strength of the claim and the potential consequences of making a claim, as well as assist in gathering evidence and navigating the legal process. In terms of strategies that could be employed when dealing with this section of the Criminal Code, claimants could consider: - Engaging a lawyer who specializes in criminal law and has experience with the proceeds of crime regime; - Being proactive in gathering evidence and documentation that support their claim and meeting the legal test for claiming an interest in the property; - Examining the circumstances surrounding the seized property carefully before making a claim and considering the potential consequences of doing so; - Following the procedures set out in section 462.42 carefully and within the timeframe prescribed by the court; - Being prepared to negotiate with the authorities in order to obtain a favourable outcome; and - If necessary, appealing the decision of the court. In conclusion, when dealing with section 462.371(7) of the Criminal Code, it is important to consider the legal test for claiming an interest in property, the potential consequences of making a claim, the timing of making a claim, the potential outcome of making a claim, obtaining legal representation, and employing strategies such as those outlined above in order to achieve a favourable outcome.